476 F.

3d 14

Linda JENESKI, Plaintiff, Appellant,

v.
CITY OF WORCESTER; Stephen R. Willand; Donald H.
Anderson; Carlene Bull; Robert J. Hennigan, Jr.; David M.
Moore; Ruth N. Bramson, Massachusetts Administrator of
Human Resources, Defendants, Appellees.
No. 06-1874.

United States Court of Appeals, First Circuit.

Submitted December 8, 2006.
Decided January 30, 2007.

Daniel J. Shea, on brief for appellant.

Janet J. McGuiggan, Assistant City Solicitor, on brief for appellees City of
Worcester, Stephen R. Willand, Donald H. Anderson, Carlene Bull and
David M. Moore.
Sookyoung Shin, Assistant Attorney General, Government Bureau, and
Thomas F. Reilly, Attorney General of Massachusetts, on brief for
appellee Ruth N. Bramson, Massachusetts Administrator of Human
Resources.
Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit
Judges.
BOUDIN, Chief Judge.

Linda Jeneski, who appeals from the dismissal of her civil rights action under
42 U.S.C. 1983, 1985 (2000), was hired in 1988 by the City of Worcester,
Massachusetts, to serve in a division of the city manager's office. Worcester had
an executive order in place, dating from 1972, which provided that employees
of the city manager's office were not subject to the civil service laws, see Mass.
Gen. Laws ch. 31 (2006), leaving them as employees at will. In September
2002, Jeneski was laid off by the city.

In 2005, Jeneski brought the present action in federal district court against the
city, certain of its officials and the state's Administrator of Human Resources,
who is responsible for the state's civil service laws. In addition to federal civil
rights claimsalleging deprivation of equal protection and due process
Jeneski asserted claims under state law based on wrongful discharge and other
theories. She also sought class action status.

The district court dismissed the federal causes of action for failure to state a
claim, Fed.R.Civ.P. 12(b)(6), and declined to exercise supplemental jurisdiction
over Jeneski's state law claims. 28 U.S.C. 1367(c)(3) (2000). We review the
dismissal of the federal claims de novo, accepting all well-pleaded facts and
giving the non-movant all reasonable inferences, not including "rhetorical
flourishes, including unsupported conclusions and assertions." Palmer v.
Champion Mortgage, 465 F.3d 24, 25, 27 (1st Cir.2006).

The operative 17-page second amended complaint contains a recitation of facts

and grievances of which some are central to this appeal and others are not.
Foremost is Jeneski's claim that from 1972 onward, Worcester attached the
label of the city manager's office to a variety of city agencies and wrongfully
exempted them under the 1972 city order from civil service protection. Jeneski
says that the exemption was unlawful under Massachusetts state law and
violated her constitutional rights.

The constitutional right principally urged by Jeneski is equal protection. The

gist of this claim is that Worcester excluded a large group of employees,
including Jeneski, from civil service protection otherwise required under state
law. This, says Jeneski, was not only unlawful under state law but violated the
Constitution by denying such employees equal treatment with others who
remained protected.

If this were done in order to harm a specially protected class (e.g., a racial
minority) or to burden fundamental constitutional rights (e.g., free speech),
governmental authorities would have to provide a substantial or compelling
justification (which one depends on the circumstances),1 but there is no claim a
specially "suspect classification" is in use or that the aim of the 1972 executive
order was to curtail free speech or some other constitutionally protected right.

In her complaint, Jeneski implies that her own discharge was connected to her
criticism of city administration. But the classification of which she complains
was adopted long before she was hired, and she has not made a first amendment
claim. Absent a suspect classification or undue burden on fundamental

constitutional rights, a classification made by government actors is vulnerable

under the Equal Protection Clause only if no rational justification can be
imagined for its use. Hoffman v. City of Warwick, 909 F.2d 608, 621-22 (1st
Cir.1990).
8

The only classification by the city or its officers is that the city by executive
order exempted from civil service protection those who work for certain
offices-broadly speaking, those nominally under the control of the city
manager. If the city chooses to have more than ordinary trust in its city manager
and wants to give him or her a free hand in personnel management, such a
policy choice cannot be described as irrational.

Jeneski says that the district court was resolving inferences against her by
speculating as to legitimate reasons for the action exempting city of Worcester
employees. This is a misunderstanding of the minimum rationality test. The
question is not what went on in the mind of the state actor but whether anyone,
including the judge, can conceive of a rational reason for such a classification.
Nordlinger v. Hahn, 505 U.S. 1, 11-12, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).
In this case, special trust and greater flexibility are such a reason.

10

Jeneski says that this exemption was illegal under Massachusetts law. Although
a city may exempt city managers and their staffs from ordinary civil service
protections, Mass. Gen. Laws ch. 31, 48, Jeneski says that Worcester did not
meet the required statutory conditions and that in Worcester the city manager
label was falsely assigned to some of the entities.

11

Possibly Worcester did act in violation of state law2 we do not decide the
point but a violation of state law is not by itself a constitutional violation.
Hoffman, 909 F.2d at 623. Jeneski says that in Hoffman, the violation was a
misdemeanor and here it is a felony. The fact remains that a classification that
is minimally rational under equal protection principles does not become
irrational because the step taken violates local law. Snowden v. Hughes, 321
U.S. 1, 11, 64 S.Ct. 397, 88 L.Ed. 497 (1944).

12

As the Fifth Circuit explained in Stern v. Tarrant County Hosp. Dist., 778 F.2d
1052, 1054 (5th Cir.1985) (en banc), cert. denied, 476 U.S. 1108, 106 S.Ct.
1957, 90 L.Ed.2d 365 (1986):

13

We reaffirm today the settled constitutional rule that state agencies may pursue
legitimate purposes by any means having a conceivable rational relationship to
those purposes. A decision that passes constitutional muster under the rational-

basis test does not violate the equal protection clause simply because it violates
a state . . . statute.
14

Jeneski relies heavily upon Baker v. Coxe, 230 F.3d 470 (1st Cir.2000), cert.
denied, 532 U.S. 995, 121 S.Ct. 1656, 149 L.Ed.2d 638 (2001), but its facts
delay in processing permits and alleged retaliation by government officials
have almost nothing to do with this case. Baker also effectively rejects Jeneski's
efforts to recast a failed equal protection claim as one based on substantive due
process. Apart from incorporation of more specific Bill of Rights provisions
into the 14th Amendment, substantive due process has a very limited reach
under modern precedent.3

15

Jeneski's brief also refers briefly to procedural due process but to what end is
unclear. A procedural due process claim requires the plaintiff to allege that she
has a property interest defined by state law and that she has been deprived of
that property interest without adequate process. PFZ Properties, Inc. v.
Rodriguez, 928 F.2d 28, 30 (1st Cir.1991), cert. dismissed as improvidently
granted, 503 U.S. 257, 112 S.Ct. 1151, 117 L.Ed.2d 400 (1992). In her
complaint, Jeneski has alleged neither.

16

In addition to section 1983, Jeneski invokes section 1985, 42 U.S.C. 1985,

which is directed so far as pertinent here to conspiracies to deprive another of
equal protection. But as no colorable violation of equal protection has been
alleged, the conspiracy claim has no purchase. Whether state law claims remain
available to Jeneski is a matter that is not before us since the district court had
discretion not to resolve them. Brennan v. Hendrigan, 888 F.2d 189, 196 (1st
Cir.1989).

17

Finally, Jeneski's brief says that there was "fraudulent concealment" by the city
a phrase ordinarily relevant to statute of limitations questionsand that the
district court failed to recognize that fact. In the district court, Jeneski
apparently alleged fraudulent concealment in at least two different contexts: in
response to a statute of limitations defense and in explaining why she had not
exhausted possible state remedies so far as this might be a required predicate to
a procedural due process claim.

18

The grounds on which we affirm the district court's dismissal do not depend on
a statute of limitations defense. And, as we do not think that the second
amended complaint fairly asserts the elements of a procedural due process
claim, the question whether state remedies have been exhausted is also not one
that needs to be addressed to sustain the district court's judgment.

19

Affirmed.

Notes:
1

Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976)
(gender classification); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct.
193, 89 L.Ed. 194 (1944) (racial classification); Mass. Bd. of Retirement v.
Murgia, 427 U.S. 307, 313 n. 3, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976)
(providing examples of recognized fundamental rights); Williams v. Rhodes,
393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (burden on first
amendment rights). See generally Nowak & Rotunda, Constitutional Law ch.
14 (5th ed.1995).

Jeneski points to the passage of state legislation in August 2006 that

specifically exempts employees in the city of Worcester's municipal offices,
2006 Mass. Legis. Serv. ch. 196, and to indications in background documents
that it was sought by Worcester precisely to erase legal doubts

Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)
("shocks the conscience" test); see also Harrington v. Almy, 977 F.2d 37, 44
(1st Cir.1992); Garcia by Garcia v. Miera, 817 F.2d 650, 658 (10th Cir.1987),
cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988).